(1 of )Michael Delgado, 16, right, smiles after finishing his homework, Wednesday Sept. 26, 2012 with the help of his mother Jeannie and his father Manuel at their home in Santa Rosa. Delgado, a special education student at Santa Rosa High School and his parents allege that Michael was hit about the head several times by his instructor at the school. Delgado was moved to another class with a different instructor, but the teacher in questions is still on campus. (Kent Porter / Press Democrat) 2012

Police, school investigate Santa Rosa High School abuse allegation

KERRY BENEFIELD

THE PRESS DEMOCRAT | October 9, 2012

Santa Rosa police are investigating allegations that an award-winning Santa Rosa High School teacher struck a special education student on the head on multiple occasions last spring.

The investigation marks the second time police have delved into allegations made by Michael Delgado and his parents, Jeannie and Manuel, that teacher Willie Swindle struck Michael Delgado during the the school day.

Santa Rosa City Schools has hired an attorney and a private investigator to re-examine the original allegations and how school and district employees handled the case.

The district has acknowledged that Swindle pinched or pulled Michael Delgado's ear. Claims that the teacher took Michael Delgado into the hall and clapped him on the head were unsubstantiated according to the district investigation, but interviews conducted cited witnesses who said Swindle would "clap Michael on both cheeks with his open palm" while in the classroom.

Swindle, 67, remains in the classroom, and the district won't say what, if any, punishment the teacher received.

"Why is he still teaching? That is our main thing: Why is he still there?" Manuel Delgado said.

"I would like to see the teacher not teaching anymore, not shuffled off anywhere. That is our concern," he said. "And the school district owns up, 'OK, we made a mistake.' Fire the teacher and move on. I don't think that is asking for much."

District policy defines child abuse as, among other things, "a physical injury which is inflicted (other than accidentally) on a child by another person," "willful cruelty or unjustifiable punishment of a child" and "willfully inflicting unjustifiable physical pain or mental suffering or failure to safeguard a child from these injuries," among others.

"I can tell you that the district has taken action in the matter, and they believe they have taken action that will safeguard the situation," said Margaret Merchat, an attorney with School and College Legal Services of California hired by the district to handle the case.

Police officers assigned to the Mendocino Avenue campus under the school resource officer program initially examined allegations that Swindle struck Michael Delgado during the spring semester.

"We investigated this at the end of the school year to the extent that we could. In the case that we investigated, there was not sufficient evidence to file a complaint," Police Lt. Ben Harlin said.

An investigation by the school district turned up additional information, prompting the police to launch a second inquiry, Harlin said.

The follow-up investigation is ongoing, Sgt. Mike Clark said. "They are fully cooperating with us," Clark said of the district.

Michael Delgado no longer is in Swindle's class but he remains on the Santa Rosa High School campus, doing academic work in a special education class, taking electives with the general student population and helping on the school's maintenance crew.

Delgado, who is developmentally delayed and has cognitive slowness according to school records, has a "very low" IQ, according to the same documents.

Swindle, has been with Sonoma County's largest school district since August 2003.

Just weeks before the Delgado family alleges Swindle started hitting Michael Delgado, then 15, Swindle was honored as Santa Rosa High's nominee for California League of High Schools Educator of the Year for Region One. In 2006, he was nominated by the school for the Santa Rosa Chamber of Commerce Educator of the Year award.

Swindle did not return repeated calls for comment. District officials have validated at least some of the Delgados' complaints, but will not comment on what, if any, discipline he faced.

In a May 1 letter to the Delgados, Assistant Superintendent Mark Klick acknowledged that a district investigation led by former special education director Debra Sanders had verified that at least some of the incidents of Swindle striking Michael Delgado.

An investigation into the claim by Delgado and his parents that Swindle took the boy into the hallway for a "pow wow" and clapped him with both hands on the side of his head were not substantiated, but witnesses interviewed reported seeing Swindle clap Michael Delgado's cheeks while in the classroom.

"One witness also reported seeing Mr. Swindle clap Michael on both cheeks with his open palms while they were standing facing each other in the classroom," the letter reads. "The witness further reported that Michael said 'ouch' and that no more than five minutes later Mr. Swindle came back to Michael from behind and slapped his cheeks again while he was standing in the main walkway of the classroom."

In the same letter, the district also validated the family's allegation that Swindle touched Michael Delgado's ears, noting a witness described the contact as "flicking," "pinching," and "pulling."

"One witness described an incident in which Mr. Swindle was reprimanding Michael for kicking another student and Mr. Swindle pinched Michael's ears twice and asked, 'Does this hurt?' " according to the letter.

A number of additional allegations could not be validated through the district's investigation, according to the letter.

"In those instances where allegations were validated, existing rules of confidentiality of employee records do not permit me to identify the action taken, although I can assure you that action was taken and that there should not be a recurrence of this incident nor will there be any retaliation toward your clients for bringing this complaint forward," Klick wrote.

Merchat said the district is following standard personnel privacy procedures.

"We have two competing interests. The district wants to be sure, with families and students, that they are feeling comfortable and safe in the environment. We have communicated that to them, that we are taking steps to address the concerns," she said. "But we also have responsibility with regard to our employees in terms of privacy interests. Unless there is the right, the mechanism to release that information, we wouldn't do that."

The allegations have been simmering since January, when the Delgados say they first alerted Santa Rosa City Schools officials of their belief that Michael was being hit at school.

Delgado spends most of his school day in one classroom, but also takes a limited number of electives with the general school population.

Delgado's parents contend their son was suspended from school for behavioral issues for the first time last spring, after he was moved into Swindle's class midyear and after they say the hitting began. The suspensions racked up and Michael Delgado was warned of potential expulsion, according to Manuel Delgado.

"In January he goes, 'We had another pow wow.' We said, 'What do you mean, a pow wow?' " Manuel Delgado said of his conversation with his son. "Mr. Swindle would take him out in the hallway and smack him."

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The Delgados said they alerted principal Brad Coscarelli who asked if they wanted to file a complaint. The family said yes, but they also contend the then 15-year-old remained in Swindle's special education class and continued to be struck.

Superintendent Socorro Shiels, who came from Morgan Hill Unified School District and did not take over in Santa Rosa until July 1, referred questions to Merchat.

"I'm going to wait to characterize the contact until after I meet with our investigators and see the full nature of what was going on," Merchat said. "I want to make sure we have all of the information. Once I get that, which I hope to have (this) week, then I will be able to definitely answer those types" of questions.

The district has hired private investigator Chris Reynolds to examine both the initial allegations and how the district handled the case.

"The district is very anxious to get a more complete picture of what occurred," Reynolds said.

Reynolds said despite being hired by Santa Rosa City Schools, his investigation will be independent. "I'm a licensed private investigator and my responsibility is to seek the truth regardless of who pays the bill," he said.

The district is paying Reynolds $125 an hour and there is no limit on the hours for the investigation, Merchat said.

School Board President Larry Haenel declined to answer questions but issued a written statement. "The district has requested its legal counsel to undertake a thorough and independent review and investigation of the issues and allegations. Once that investigation is complete we will be able to determine if additional actions are required to fully address the needs and concerns of the student and his parents," he wrote.

Michael Fiumara, a Santa Rosa-based attorney retained by the Delgados, said the district should have addressed the complaints months ago.

"This could have been resolved if the school district did their job. They didn't," Fiumara said. "This whole investigation has been stonewalled and whitewashed and unfortunately, nothing has happened."